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NPRM: Prohibition of Federal Funding of Costs of Incarceration and Counsel

AT-86-13

Published: June 13, 1986
Information About:
State/Local Child Support Agencies
Topics:
Family Services & Referrals, Incarceration/Prisoner Reentry, Funding, Federal Financial Participation (FFP)
Types:
Policy, Action Transmittals (AT), Regulations

ACTION TRANSMITTAL

OCSE-AT-86-13

June 13, 1986

TO: STATE AGENCIES ADMINISTERING CHILD SUPPORT ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS

SUBJECT: Prohibition of Federal Funding of Costs of Incarceration and Counsel for Indigent Absent Parents

REGULATION

REFERENCE: 45 CFR Part 304

ATTACHMENT:Attached are proposed regulations that would amend 45 CFR 304.23 to reflect agency policy that Federal funding is not available under the Child Support Enforcement program for costs of incarceration of absent parents and costs of counsel for indigent defendants.

COMMENT

PERIOD: Consideration will be given to written comments received by the Director, Office of Child Support Enforcement, Department of Health and Human Services, Room 1010, 6110 Executive Boulevard, Rockville, Maryland 20852, on or before August 5, 1986.

INQUIRIES TO: OCSE Regional Representatives

___________________________________

Deputy Director

Office of Child Support Enforcement

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Child Support Enforcement

Child Support Enforcement Program; Prohibition of Federal Funding of Costs of Incarceration and Counsel for Indigent Absent Parents

45 CFR Part 304

AGENCY: Office of Child Support Enforcement (OCSE) HHS.

ACTION: Notice of proposed rulemaking.

SUMMARY: This proposed rule would amend 45 CFR 304.23 to reflect longstanding agency policy that Federal funding under the Child Support Enforcement (IV-D) program for costs of incarceration of absent parents in child support enforcement cases and costs of counsel for indigents in IV-D actions is not available. In addition, 45 CFR 304.27, which concerns Federal funding prior to December 31,1975 would be deleted because it is obsolete.

DATES: Consideration will be given to comments received by August 5,1986.

ADDRESSES: Send comments to Director, Office of Child Support Enforcement, Department of Health and Human Services, Room 1010, 6110 Executive Boulevard, Rockville, Maryland 20852. Comments will be available for public inspection Monday through Friday, 8:30 am. to 5:00 pm. in Room 1010 of the Department's office at the above address.

FOR FURTHER INFORMATION CONTACT: Joyce Linder or Betsy Matheson (301) 443-5350.

SUPPLEMENTARY INFORMATION:

Background

Costs of Incarceration and Providing Counsel for Indigent Absent Parents

The Senate Committee on Finance, in its report on H.R. 4325, which became the Child Support Enforcement Amendments of 1984, stated: "It is not the intent of the Congress to match all costs that might be related to operating a child support enforcement program. For example, the Committee believes Federal matching should not be available for expenditures related to incarceration of delinquent obligers and providing defense counsel for absent parents." (See S. Rep. No. 98-387, 98th Cong., 2d Sess., p. 23.)

Periodically, through the years, States have requested that the costs of incarceration of delinquent obligers and of defending indigent absent parents in IV-D cases should bereimbursed. OCSE's policy since the inception of the program has been that costs of incarceration of delinquent obligers and costs of defense counsel are not necessary and reasonable costs associated with the proper and efficient administration of the title IV-D program, are a general expense of State or local governments and therefore do not meet the cost principles found in OMB Circular No. A-87, Attachment A, section C.1.a. (Cost Principles for State and Local Governments). Furthermore, there is no statutory authority for payment of such costs. Because program regulations do not explicitly include this longstanding policy, we propose to modify those regulations to incorporate this policy.

Federal Funding in the Operation of the Child Support Enforcement Program in the Absence of an Assignment

Current regulations at 45 CFR 304.27 make Federal funding available at the 70 percent rate for expenditures made under an approved IV-D State plan until December 31, 1975, irrespective of the requirement of an assignment of rights to Support. Furthermore, 304.27(b) states that this section remains in effect until December 31, 1975. Because it was repealed as of the close of business on that date, we propose to delete this obsolete Section.

Statutory Authority

This regulation is proposed under the authority granted to the Secretary by section 1102 of the Social Security Act (the Act). Section 1102 requires the Secretary to publish the regulations that may be necessary for the efficient administration of the functions for which he is responsible under the Act.

Regulatory Provisions

In enacting title IV-D of the Act in 1975, Congress did not intend that every expense incurred by the State in enforcing child support obligations would be reimbursable by Federal funding. In fact, Congress expected "the States to continue to devote to this purpose [law enforcement] at least as much non-Federal funding as they currently provide." S. Rep. No. 93-1356, 93rd Congress., 2nd Sess., p. 50. Incarceration is a punishment for violation of State and local laws in general, not just those related to child support enforcement. Imposing a jail sentence for wilful refusal to abide by a court order to pay support promotes respect for the laws and the judicial decisions of the State and its courts. Therefore, we believe that payment for the costs of incarceration is entirely a responsibility of State and local governments and should not be subject to Federal funding under the IV-D program.

Title IV-D of the Act was enacted for the purpose of enforcing the support obligations owed by absent parents. Nowhere in the Act nor in any legislative history explaining theIV-D program is there language providing funding for costs incurred in connection with the defense of absent parents who have failed to support their children. In fact, as stated previously, Congress indicated in connection with the Child Support Enforcement Amendments of 1984 that Federal funding should not be available for these costs. Such funding would be antithetical to the purpose of the program, i.e., to ensure that children receive the support to which they are entitled. A defense attorney's function is to promote the best interests of the client, which may actually be to limit or avoid imposition of support liability.

To make these policies explicit, we are amending 45 CFR 304.23 by adding a new paragraph (i) which would prohibit Federal funding for expenditures resulting from the jailing of absent parents in IV-D cases and a new paragraph (j) which would prohibit Federal funding for costs of counsel for indigent defendants in IV-D actions.

We are deleting 45 CFR 304.27, Federal financial participation in the operation of the Child Support Enforcement Program in the absence of an assignment, because it is obsolete:

Paperwork Reduction Act

This regulation contains no information collection requirements that are subject to OMB review under the Paperwork Reduction Act of 1980 (Pub. L. 96-511).

Regulatory Flexibility Analysis

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354) that this regulation will not result in significant impact on a substantial number of small entities. The primary impact is on State governments and political subdivisions and we believe that this impact will be nominal because the proposal merely puts in regulation longstanding OCSE policy.

Executive order 12291

The Secretary has determined. In accordance with Executive Order 12291, that this rule does not constitute a "major" rule. A major rule is one that is likely to result in:

o An annual effect on the economy of $100 million or more;

o A major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; or

o Significant adverse effects on competitions employment investment productivity, innovation, or on the ability of the United States-based enterprises to compete with foreign-based enterprises in domestic or import markets.

The proposal is expected to have an insignificant impact on State and Federal expenditures because it only specifies in regulation current OCSE policy.

List of Subjects in 45 CFR Part 304

Child welfare, Grant programs/social programs

PART 304-[AMENDED]

For the reasons discussed above, 45 CFR Part 304 is proposed to amended as follows:

1. The authority citation for Part 304 continues to read as forth below:

Authority: 42 U.S.C. 651 through 658, 660, 664, 666, 667, 1302, 1396a(a)(25). 1396(d)(2), 1396b(o). 1398b(p), 1396(k).

2. 45 CFR 304.23 is amended by adding introductory text and new paragraphs (i) and (j) to read as follows:

õ304.23 Expenditures for which Federal financial participation is not available.

Federal financial participation at the applicable matching rate is not available for:

* * * * *

(i) Any expenditures for jailing of parents in child support enforcement cases.

(j) The costs of counsel for indigent defendants in IV-D actions.

õ304.27 [Removed and reserved]

3. 45 CFR 304.27 is removed and reserved.

(Catalog of Federal Domestic Assistance Program No. 13.679, Child Support Enforcement Program)

Dated: March 11,1986.

Steven Ritchie,

Director, Office of Child Support

Enforcement.

Approved: April 16,1986.

Otis R. Bowen,

Secretary

[FR Doc. 86-2752 Filed 6-5-86; 8:45 am]

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